| Mo. Ct. App. | Dec 31, 1878
delivered the opinion of the court.
This is an action against the defendant as a common carrier, to recover the value of goods delivered to it for transportation to Birge, Nichols & Co., consignees at Fulton, Arkansas. The petition alleged a failure to deliver the goods. The answer alleged that the goods were duly transported to Fulton; that the consignees were not ready to receive them ; that after search for the consignees, and waiting a reasonable time, the defendant caused the goods to be stored, for account of their owners, with warehousemen at Fulton, and that while in the warehouse the goods were destroyed by fire.
Upon the trial it appeared from the bill of lading that the defendant received the goods, being sheetings, etc., and agreed to transport them to Fulton and there deliver them to the consignee or connecting common carrier, the marks being, “ Via Fulton: Birge, Nichols & Co., Jefferson, Texas;” that the goods left St. Louis on October 4, 1873, and arrived at Fulton after dark on October 7th. The defendant’s agent at Fulton testified that, it being too late to handle the goods on that night, and the company having then no freight-house at that point, as the road had been completed there only a short time, the goods, after being kept in the cars upon the night of the 7th, were turned over to Lowry & McGee, who had a warehouse about seventy-five or one hundred feet from the road, and whose receipt for them was taken; that inquiry was made for the consignees, and that then the goods were stored, as had been the course of business there since the road had been in operation in case of non-resident owners. The
The defendant complains that erroneous instructions were given. The court below instructed the jury to the effect that though it might be customary with the defendant to store goods intended for transportation beyond Fulton, yet such custom could not relieve the defendant from the necessity of holding the goods for a reasonable time after their arrival, before storing them on account of the owners. The jury were also instructed to the effect that the fact that the consignees did not reside at Fulton, or were not there immediately upon the arrival of the goods to receive them, was not sufficient to excuse a non-delivery, or to authorize the defendant to at once store the goods ; but that it was incumbent upon the defendant to show that it held them a reasonable time after their arrival (sufficient to lead a man of ordinary prudence to conclude that the consignees would not soon appear to receive the goods) before depositing them in the warehouse. The defendant asked the court to instruct to the effect that if the goods were carried safely to Fulton and stored in the warehouse, subject to the order of the consignees, on the morning of October 8, 1873; that the warehouse was safe, etc.; and that after the storage the consignees did not call within a reasonable time, and the goods were destroyed by fire, then the jury should find for the defendant. The court so modified this instruction as to require the defendant to have held the goods a reasonable time before storing them. The following instruction as to notice was given for the defendant: ‘ ‘ The court further instructs the jury that it was the duty of the consignees to
It has been a vexed question whether in cases like the present the responsibility of the carrier, as such, ends with the deposit of the goods at their point of destination, or whether the liability continues for a time reasonably sufficient to enable a diligent consignee to examine and receive the goods. The latter seems the rule best grounded in reason and public convenience. The duty of the carrier, it would seem, should correspond to the obligation of the consignee. There is no occasion to interpose the obligation of warehouseman, if both carrier and consignee do their duty. If the liability of the carrier ends when the goods are unloaded, then it must be that the consignee is bound to be present directly upon their arrival, no matter at what time of the night or day they arrive. But the contingencies attending upon the carrier’s business, which make it often impossible for the consignee, be he ever so vigilant, to know when the goods will arrive, are incidents of the carrier's obligation, and, as between the two, ought not to impose an additional burden upon the consignee. Indeed, as it would not practically be contended that the consignee must, irrespective of circumstances, present himself to inspect the goods at the moment of their deposit, or that he ought to wait indefinitely to meet the contingencies of transportation, the question finally resolves itself into what time ought to be given to the consignee to inspect and remove the goods. And now, after much doubt, it may be considered sound doctrine that the liability of a railroad company as common carrier does not terminate with the deposit of the goods at the point of destination, in a proper place, or with
In considering what is reasonable time, however, even where this question is one for the jury, they are not to be governed by their own notions, but must find the fact in subordination to the rules of law. The extraordinary liability of the carrier is not to be unduly extended ; and the obligation of the consignee is of a positive character, which is not affected to his advantage by his non-residence. The fact of his absence or non-residence does not relieve him from his duty, as the reasonable opportunity afforded him to remove the goods is not measured by his peculiar circumstances, but is such as would give to a person residing in the vicinity, and who had informed himself of the probable time of arrival of the goods, and of the course of business of the carrier, a reasonable time during business hours within which he could inspect and remove the goods. In the absence of an observance by the consignee of these obligations on his part, and after the reasonable time thus measured has elapsed, the liability of warehouseman commences.
In the present case, upon the supposition that the question of reasonable time was for the jury, the defendant might have asked more'definite instructions than were given.
The evidence showed that the goods arrived after dark on the 7th, and that during the night they were, with other goods, locked in the car. On the next day, but at what time of the day it does not appear, they were delivered to the warehouseman. There was no evidence to show that there was any reasonable opportunity for inspection or removal before the goods were delivered to a third person. The burden was on the defendant to prove that its obligation as carrier was dischai’ged, and such reasonable opportunity given ; and in the absence of such evidence, it cannot contend that the delivery of the goods to a third person, before such an opportunity was afforded, discharged its obligation as a carrier. The defence, as the answer shows, is, that after the expiration of a reasonable time, etc., the goods were deposited for account of the owners, for safekeeping, with Lowry & McGee, who paid the freight and charges. Thus, if the goods were burned in the warehouse— and it is possible, upon the evidence, that the jury have found to the contrary, and charged the defendant as not having in any way accounted for non-delivery — they were burned while in the possession of a third person, to whom the defendant delivered them without authority, and before its own duty as a carrier was discharged. It is said that no one on the part of the consignees ever called for the goods, and it is complained that the court’s instructions disregard this fact; that under the law as laid down, if a
The defendant has no ground for complaining of any of the instructions; their fault is rather that, upon the evidence, they are too favorable for the defendant. The testimony is very slight, to say the least, to support some of the hypotheses put to the jury in its favor.
The judgment will be affirmed.